The State of Western Australia v Heijne

[2009] WASC 162

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- HEIJNE [2009] WASC 162

CORAM:   McKECHNIE J

HEARD:   8 MAY 2009

DELIVERED          :   18 MAY 2009

PUBLISHED           :  16 JUNE 2009

FILE NO/S:   INS 17 of 2008

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Applicant

AND

GERARDUS GERRIT HEIJNE
Accused

AND

WEST AUSTRALIAN NEWSPAPERS LTD
CHANNEL SEVEN PERTH PTY LTD
Interveners

Catchwords:

Criminal law and procedure - Application to suppress names of witnesses - Matters to be taken into account

Legislation:

Nil

Result:

One application granted, one refused

Category:    B

Representation:

Counsel:

Applicant:     Mr B Fiannaca SC & Ms K C Cook

Accused:     Mr R W Richardson

Interveners  :     Mr J McLaurin

Solicitors:

Applicant:     Director of Public Prosecutions (WA)

Accused:     O'Connor Lawyers

Interveners  :     Edwards Wallace

Case(s) referred to in judgment(s):

Attorney‑General v Leveller Magazine Ltd [1979] AC 440

J v L & A Services Pty Ltd (No 2) (1995) 2 QdR 10

R v Chief Registrar of Friendly Societies; Ex parte New Cross Building Society [1984] QB 227

R v His Honour Judge Noud; Ex parte McNamara (1991) 2 QdR 86

Re Her Honour Chief Judge Kennedy; Ex parte West Australian Newspapers Ltd [2006] WASCA 172

Sparks v Bellotti [1981] WAR 65

1. McKECHNIE J:  The accused is charged with wilful murder and in the alternative murder.  The trial was to commence on 11 May 2009 but was adjourned on that date for one week.  On the day listed for trial, due notice having been given, the prosecution brought applications for two orders, one in respect of a male witness and one in respect of a female witness, prohibiting the publication outside the courtroom of the identity of those witnesses.  The applications were opposed by counsel for the accused.  Leave was granted to counsel for media organisations to appear and make submissions.  At the conclusion of argument I continued a temporary suppression order in relation to the applications and advised counsel that I would announce my decision before the start of the trial.  On 18 May 2009, at the commencement of the trial, I made an order for the suppression of the identity of the male witness and declined to make an order for suppression of the identity of the female witness.  I indicated that I would publish reasons for my decision at the conclusion of the trial.  The trial concluded on 9 June 2009.  These are the reasons. 

2. The State applies for orders prohibiting the publication outside the courtroom of the identity of two witnesses, one male and one female.  The application is said to be brought under the Criminal Procedure Act 2005 (WA) s 171(4)(b). The relevant portions of the Criminal Procedure Act s 171 are as follows:

   (2)Subject to this section, all proceedings in a court are to be in open court and the courtroom where the court sits is to be open to the public unless this Act or the rules of court or another written law provides otherwise.

   …

   (4)On an application by a party to the case, or on its own initiative, a court may, if satisfied it is in the interests of justice to do so -

   (a)order any or all persons, or any class of persons, to leave or be excluded from the courtroom during the whole of the proceedings, or a part of them specified by the court;

   (b)make an order that prohibits the publication outside the courtroom of the whole of the proceedings, or a part or particular of them specified by the court;

   (c)make an order that prohibits or restricts the publication outside the courtroom of any matter that is likely to lead members of the public to identify a victim of an offence.

3. Counsel for the interveners takes the point that the applications are not made in respect of a victim and so the applications can only be dealt with under the inherent jurisdiction of the court. 

4. Section 171(2) is a legislative command that proceedings in court are open to the public. Open to the public must include open to members of the media and there can be no restriction on members of the public, including members of the media, talking about or reporting on what has been heard in court unless that restriction is provided for by the Criminal Procedure Act or the Rules of the Supreme Court 1971 (WA) or another written law. To adapt a constitutional phrase, s 171 would appear to cover the field and leaving no room for the exercise of any jurisdiction that would otherwise inhere to the court as an incident of its function as a court: Sparks v Bellotti [1981] WAR 65.

5. The court has long claimed an inherent jurisdiction to control its procedures, particularly in respect of securing a fair trial by the prevention of publication of material that could prejudice a fair trial. I use the word 'material' advisedly to differentiate it from the proceeding as mentioned in s 171(4)(b). The court has also claimed power to make orders for the administration of justice including orders suppressing the identity of a witness. Some of the cases to which reference will be made are examples of the exercise of this power. Although the exercise of that power is restricted to exceptional circumstances, it is a power which is occasionally necessary. There is no reason why Parliament would seek to restrict the exercise of the power. The Criminal Procedure Act s 171(4)(b) is wide enough to prohibit the publication of any particular part of the proceedings that can identify a witness, especially if viewed against a parliamentary intention not to circumscribe the power of the court to make such orders.

6. Mr Richardson and Mr McLaurin both submitted that s 171(4)(b) could not be a source of power to suppress the identity of witnesses because there is a specific provision, s 1714(c) that restricts publication. This section, however, is confined to restrictions on the identity of victims, not witnesses. I am unable to accept that submission. Victims are defined, for the purposes of that act in the Victims of Crime Act 1994 (WA):

   victim means -

   (a)a person who has suffered injury, loss or damage as a direct result of an offence, whether or not that injury, loss or damage was reasonably foreseeable by the offender; or

   (b)where an offence results in a death, any member of the immediate family of the deceased.

   The term is not defined in the Criminal Procedure Act but the definition in the Victims of Crime Act is a suitable definition of a victim.  A victim may not be a witness. 

7. In sexual cases there is a statutory prohibition on identifying victims. In other cases s 171(4)(c) may be invoked. There is no reason to cut down the plain words of s 171(4)(b) because s 171(4)(c) makes specific provision for a person who may not necessarily be a witness.

The legal principles

1. Although it is my view that the power is entirely statutory nevertheless the exercise of the power falls to be considered against the statements of principle in the authorities on the exercise of the inherent power.

2. The principles are gathered together in Re Her Honour Chief JudgeKennedy; Ex parte West Australian Newspapers Ltd [2006] WASCA 172 by Steytler P (Roberts‑Smith and McLure JA agreeing) at [8], [36] ‑ [41]:

   In the article which was published on 18 December 2004, Klavins was reported as having revealed that plots to torture the Prime Minister and to intimidate the Western Australian Attorney‑General were part of the ANM's daily operations.  The article went on to reveal that, on the previous Tuesday, the Perth Magistrates Court had been told that Klavins would be the main witness against the men with whom he was alleged to have conspired to fire bomb Asian restaurants, that the Magistrate had granted him bail because of 'that aid' and that he was likely to get 'a cut sentence'.  The article also revealed that The West Australian newspaper had copies of Klavins' statement, as well as a statement from a second 'rollover' witness, which outlined the alleged activities of the ANM from the time of Van Tongeren's release in 2002.  The article went on to record a number of allegations against ANM members that had been made by Klavins.

   …

   The fundamental importance of openness in the administration of justice has repeatedly been stressed.  In this State, the more pertinent authorities have been collected in Bromfield at 179 - 183 per Rowland J, and at 193 per Nicholson J, and in Re Robins at [5] - [9] per Ipp J.  I will not repeat what has there been said, other than by quoting what was said by Gibbs J in Russell v Russell (1976) 134 CLR 495 at 520, where he identified the basis for the principle as follows:

   'It is the ordinary rule of the Supreme Court, as of the other courts of the nation, that their proceedings shall be conducted "publicly and in open view" … This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected.  Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts.  The fact that courts of law are held openly and not in secret is an essential aspect of their character.'

   I should also repeat what was said by Samuels JA in Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 61, as follows:

   'The inquiry must start with the proposition, central to our notions of forensic procedure, that the courts customarily conduct their business in public in order that the integrity, fairness and efficiency of the system, and its administrators, may be maintained by its exposure to public scrutiny.  One corollary is the freedom to publish to the public fair reports of the court's proceedings.'

   (See also, in this last respect, Attorney-General v Leveller Magazine Ltd [1979] AC 440 at 450; John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476 ‑ 477; and John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324 at [20]).

   Of course, the principle of open justice is not absolute.  There are exceptions to it, albeit these are few and strictly defined:  John Fairfax Publications Pty Ltd v Attorney‑General (NSW) (2000) 181 ALR 694 at 707 per Spigelman CJ; and see R v Kwok (2005) 64 NSWLR 335. In this State, at the time of the orders made by the primary Judge, s 635(2) of the Criminal Code (WA) provided that, if satisfied that it is necessary for the proper administration of justice to do so, a court may, amongst other things, exclude persons from the court-room during a criminal proceeding and make an order prohibiting publication outside the court‑room of the whole or any part of the proceedings (see, now, s 171 of the Criminal Procedure Act 2004 (WA)).

   In John Fairfax & Sons Ltd v Police Tribunal, above, at 476 ‑ 477 McHugh JA said, amongst other things, that a court can only depart from the requirement of open justice where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule, that the making of the order must be reasonably necessary, that there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication and that mere belief that the order is necessary is insufficient.

   Sometimes, as Kirby P (as his Honour then was) said in John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales (1991) 26 NSWLR 131 at 141, the very openness of court proceedings might destroy the attainment of justice in particular cases (as, for example, where the activities of a blackmailer are vindicated) or discourage its attainment (for example, by frightening off blackmail victims or informers). Similarly, open justice might derogate from urgent considerations of public interest as, for example, by endangering national security. An exception to the principle would also be justified in circumstances in which publication would put at risk the life of a particular person or persons. Whatever the ground, it must be both exceptional and compelling: Raybos Australia at 54 ‑ 55; TK v Australian Red Cross Society (1989) 1 WAR 335 at 336 ‑ 337; and Re Robins, at [9].  However, it has not been the practice of courts to require evidence that the consequences conventionally attributed to the disclosure of names in cases involving informers (or in cases involving blackmail, extortion or security issues) will actually eventuate.  Rather, the courts have inferred that they will, in the absence of proof to the contrary:  John Fairfax Group, above, at 163 per Mahoney JA.  Exceptions to the open justice principle have often been allowed in order to protect informers:  see Cain v Glass (No 2) (1985) 3 NSWLR 230 at 246 ff; John Fairfax & Sons Ltd v Police Tribunal, above, at 472; and John Fairfax Group, above, at 141 and 161.  This has usually been because the future supply of information from such persons will otherwise be put at risk and because of the danger to the informer. 

   It has been said in a civil law context, in David Syme & Co Ltd v General Motors‑Holden's Ltd [1984] 2 NSWLR 294, that the fact that proceedings may be held in camera does not justify the judgment or orders being completely withheld from disclosure and that justice requires that, wherever possible, an appropriately formulated statement of reasons should be made which conveys an adequate account of the litigation and the reasons underlying the orders such as will ensure any confidentiality which a party may be entitled to have protected:  see at 299 ‑ 301 per Street CJ (who found it difficult to conceive of any case in which it is impossible to provide some statement by way of public account of the proceedings and reasons), at 307 ‑ 308 per Hutley AP, at 310 ‑ 311 per Samuels JA; and see also John Fairfax & Sons v Police Tribunal, above, at 477; and John Fairfax Publications Ltd v District Court, above, at [61] ‑ [62] per Spigelman CJ.  However, while the general principle is undoubtedly applicable, even in criminal proceedings, it may not always be achievable in sentencing proceedings of the kind in this case, where the principal consideration applicable to the sentencing of the accused is his cooperation with the authorities in providing information in respect of offences committed by others and in which the leniency of the sentence imposed itself speaks volumes as regards the extent of the cooperation provided.

3. Re Her Honour Chief Judge Kennedy was not a case that concerned the Criminal Procedure Act directly although cited.  That is because the suppression order under consideration was made on 8 February 2005 before the Criminal Procedure Act2004 came into effect. 

4. In argument counsel for the accused and counsel for the media referred to many of the cases in the judgment.  I will refer to some.

5. In Attorney‑General v Leveller Magazine Ltd [1979] AC 440 Lord Diplock said:

   As a general rule the English system of administering justice does require that it be done in public: Scott v Scott [1913] AC 417. If the way that courts behave cannot be hidden from the public ear and eye this provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains the public confidence in the administration of justice. The application of this principle of open justice has two aspects: as respects proceedings in the court itself it requires that they should be held in open court to which the Press and public are admitted and that, in criminal cases at any rate, all evidence communicated to the court is communicated publicly. As respects the publication to a wider public of fair and accurate reports of proceedings that have taken place in court the principle requires that nothing should be done to discourage this.

   However, since the purpose of the general rule is to serve the ends of justice it may be necessary to depart from it where the nature or circumstances of the particular proceeding are such that the application of the general rule in its entirety would frustrate or render impracticable the administration of justice or would damage some other public interest for whose protection Parliament has made some statutory derogation from the rule. Apart from statutory exceptions, however, where a court in the exercise of its inherent power to control the conduct of proceedings before it departs in any way from the general rule, the departure is justified to the extent and to no more than the extent that the court reasonably believes it to be necessary in order to serve the ends of justice.  (449 ‑ 450)

6. In R v Chief Registrar of Friendly Societies; Ex parte New Cross Building Society [1984] QB 227 Sir John Donaldson MR (Griffiths and Slade LJJ agreeing) said:

   The general rule that the courts shall conduct their proceedings in public is but an aid, albeit a very important aid, to the achievement of the paramount object of the courts which is to do justice in accordance with the law.  It is only if, in wholly exceptional circumstances, the presence of the public or public knowledge of the proceedings is likely to defeat that paramount object that the courts are justified in proceeding in camera.  These circumstances are incapable of definition.  Each application for privacy must be considered on its merits, but the applicant must satisfy the court that nothing short of total privacy will enable justice to be done.  It is not sufficient that a public hearing will create embarrassment for some or all of those concerned.  It must be shown that a public hearing is likely to lead, directly or indirectly, to a denial of justice.

7. All these, and many other cases, were examined in J v L & A Services Pty Ltd (No 2) (1995) 2 QdR 10 before Fitzgerald P and Lee J in a joint judgment summarised the findings as follows:

   1.Although there is a public interest in avoiding or minimising disadvantages to private citizens from public activities, paramount public interests in the due administration of justice, freedom of speech, a free media and an open society require that court proceedings be open to the public and able to be reported and discussed publicly.

   2.The public may be excluded and publicity prohibited when public access or publicity would frustrate the purpose of a court proceeding by preventing the effective enforcement of some substantive law and depriving the court's decision of practical utility.  National security provides a further special, broadly analogous exception to the requirement of open justice because of its fundamental importance to the preservation of a democratic society based on the rule of law.

   …

   4.No unnecessary restriction upon public access or publicity in respect of court proceedings is permissible.

   5.Different degrees of restraint are permissible for different purposes.  Although the categories tend to coalesce, they are broadly as follows:

   …

   (c)An incidental, procedural restriction is permissible if necessary in the interests of a party or witness in a particular proceeding; for example, identities of witnesses or details of particular activities which are not directly material such as engaging in covert law enforcement operations or providing information to police may be suppressed.

   6.It is the last category which gives rise to the most difficulty because of unresolved questions concerning the nature and ambit of the power.  Support for a more liberal approach seems substantially confined to modern authority.  Even so, information may not be withheld from the public merely to save a party or witness from loss of privacy, embarrassment, distress, financial harm, or other 'collateral disadvantage', to use the expression adopted in R v Tait.  Additionally, when it is the interests of a party or a witness which is relied on as the basis for a proposed restraint, those considerations must be balanced against other factors, including the interests of others involved in the proceeding and others who may be affected.  Open justice is non-discriminatory, whereas exceptions to the principle of open justice deny equal rights to the disputing litigants and provide a benefit to some litigants which is unavailable to members of the general public.  Further, public scrutiny is a strong disincentive to false allegations and a powerful incentive to honest evidence, and publicity may attract the attention of persons with material information who are unaware of the proceeding.

1. In a case bearing some slight similarity to the present in that it involved an order prohibiting publication of certain witnesses' names R v His Honour Judge Noud; Ex parte McNamara (1991) 2 QdR 86 Williams J (with the specific approval of Demack J) said:

   Thus it appears that the court should only depart from the basic principle that proceedings take place in public, and without any limitation thereon, if it is positively established to the court that without such direction justice could not be done because of the grave difficulty in having the witnesses come forward in cases of that type.  That will frequently occur when the essential prosecution witness has a 'secret' (to use Lord Widgery's term) which would of necessity have to be made public if that witness was to give in open court the evidence without which criminal conduct would go unpunished. (106)

2. Williams J noted that the situation would clearly arise where the charge is blackmail but also in cases of official corruption.

The evidence in this case

The male witness

1. The application arises in the course of criminal proceedings where the accused is charged with wilful murder and in the alternative murder.  I have read the statements made by the witness to police.  I make no comment on the accuracy of those statements, that being a matter for the jury at the trial.  However, it is sufficient to say that the statements disclose material which is, on any view, highly relevant to the case.  Part of the statement details acts of physical familiarity between the accused and the witness.  He engaged in a passionate relationship with the accused over a relatively short period.  The relationship ended with the alleged offence the subject of the indictment.  The precise nature of the relationship is one that I do not determine, that being a matter for the jury.  However, I anticipate that it will be the subject of examination and cross‑examination.

2. The witness has deposed that he suffers from clinical depression which was first diagnosed at the age of 15.  He details aspects of his life which are unnecessary for me to set out.  Specifically, since the charges were laid against the accused, he has had to give statements to the police about his relationship with the accused and deceased.  He has suffered from severe anxiety, mood swings, hallucination and serious depression, together with suicidal thoughts.  He is living in a small community with his family and considers that publication of his identity would cause irreversible damage to his relationship with them.  He works within the community and is currently in a serious relationship with a girl.  He deposes:

   It would almost literally kill me for anything printed or viewed by her about the content of my involvement with this case to ruin what is the most important thing in my life at the moment.

3. He concludes:

   I have made some very naïve and childish mistakes at such a young age, and I have done everything I can to rebuild my life and move on from the strange and confused life I was leading while involved with [the accused].

4. A witness in a criminal case is not a party to the proceedings.  A witness under summons has no choice but to attend and give evidence.  The principle of open justice as set out in the authorities is so strong that it must be exceptional to depart from them.

5. However, as the authorities to which I have made reference reveal, the rule is not an absolute one and a judge must make orders to further the administration of justice.  An order made suppressing the identity of a witness is not made to cater for the private wishes of the witness but for the public administration of justice.

6. In this case I note the following.  The court will be open.  The identity of the witness will not be suppressed from the jury.  All the evidence of the witness will be available for fair and accurate reporting by members of the media who are free to attend the case.  The application seeks only the suppression of the identity of the witness.  The witness was and is a young man who has deposed to the likely effect on his mental health if his identity were to be published.  He is a person (to use Lord Widgery's term) 'with a secret'.  Mindful of the general principle as I have stated it above, I see no public interest in the publication of the witness's identity.  On the contrary, I see a strong public interest in the suppression of the witness's identity.  The interests of justice do not exclude completely the private interests of a witness especially where that witness's mental health may be significantly adversely affected.  It is important for the administration of justice that a witness is concentrating on the giving of evidence truthfully and actively rather than on the widespread dissemination of their private life.  It is unlikely that publication of the witness's name will lead to further material being brought forward having regard to the evidence presently available, and taking account of lines of defence that would appear to be open.

7. Although Australia is a diverse society, many members of society still stigmatise gay relationships.  It is in the interests of the administration of justice that where a witness with a mental history as recounted gives central evidence in relation to such a relationship that they may do so without the burden of concern about publication of their relations.

8. For these reasons I made the order sought.

The female witness

1. The female witness has also provided an affidavit detailing the reasons why she seeks an order protecting her identity from publication.  I do not propose to set out those details.  Sympathetic as I was to those reasons, they were not sufficient to persuade me away from the ordinary path of open justice.

2. I therefore refused the order.